Understanding Intestate Succession Law in Florida

October 19

Intestate Succession Laws in Florida

Written by Thomas Upchurch

With proper estate planning, Florida residents can direct a wide variety of critical decisions, from how medical care is determined when they are incapacitated to how their property is distributed after death. Unfortunately, many people don’t recognize the importance of estate planning, or simply delay too long.

When someone dies without a will, living trust, or other provision for his or her property, distribution is determined by the law of intestate succession. Intestate succession laws are intended to ensure that those closest to the deceased are provided for. However, the outcome isn’t always what you might expect or intend.

The Pitfalls of Intestate Succession

If the deceased leaves behind a spouse but no descendants, or the only descendants of either spouse are shared, then the spouse inherits everything. Similarly, if the deceased has children but no spouse, then those children will receive the whole of the estate.

While that system works well in some families, there are many possible issues those who fail to engage in estate planning may not consider. For example, if the deceased leaves behind no spouse, but two natural children and a stepchild who was raised as his own, the stepchild will inherit nothing through intestate succession.

Intestate Succession Is More Complicated for Mixed Families

When there is a surviving spouse and either the deceased or the surviving spouse has separate children or other descendants, the inheritance is split between the spouse and the descendants. While there’s good reason for this different treatment, it can have significant unintended consequences, and results in different widows/widowers in very similar circumstances being treated very differently.

For example, if a couple has four children together and neither has separate descendants, the surviving spouse would receive 100% of the estate under the laws of intestate succession. However, if the couple has four children together and the surviving spouse has one separate child, then the law would grant the surviving spouse just 50% of the estate.

Intestate Succession With No Surviving Spouse or Descendants

Florida intestate succession law includes a hierarchy for situations in which the deceased is not survived by a spouse or any descendants. Assets pass to more distant relatives in the following order:

The deceased’s parents, in equal shares, or 100% to the surviving parent if one is deceased.

The deceased’s siblings and descendants of deceased siblings.

If there are no surviving parents, siblings, or descendants of deceased siblings, the split becomes more complicated. Fifty percent of the estate goes to relatives on the deceased’s father’s side of the family and 50% to relatives on the mother’s side of the family, in the following order of priority:

50% to the grandmother and 50% to the grandfather, or 100% to the surviving grandparent if one is deceased.

Uncles and aunts and descendants of deceased uncles and aunts.

If there are no remaining relatives in the above-listed categories on either the paternal or maternal side, then the full estate will pass to the other side. If there are no surviving relatives in the above-listed categories on either side, then the estate will pass to the relatives of the last deceased spouse of the deceased.

In short, the hierarchy is complicated and may result in assets passing to someone the deceased would not have chosen—or, perhaps, even considered. Take charge of your assets and protect your loved ones by meeting with a qualified local estate planning lawyer and creating a will, trust, or other mechanism for directing distribution of your property after death.

Not All Property Passes Through the Estate

Most assets pass through the estate, meaning that they will be subject to distribution under intestate succession law if the deceased did not make specific legal provisions. However, certain property doesn’t pass through the estate. Some examples include:

Life insurance with a named beneficiary

Retirement accounts with a named beneficiary

Property held jointly with rights of survivorship

When you meet with your estate planning attorney, be sure to discuss these assets to determine the best way to pass them to your beneficiaries. Often, you have options, and the one you choose may impact the security of the asset, tax obligations, and more.

Protecting Your Family by Planning Ahead

When your property passes through intestate succession, you lose control of who receives your assets. But, that’s not the only risk associated with failing to create an effective estate plan. Lack of clarity may increase the likelihood of estate litigation, which is stressful, time-consuming, and can drain the estate of assets.